Claim No: IP-2022-000086 - [2024] EWHC 1430 (IPEC)

The Supreme Court in Lifestyle Equities CV v Amazon UK Services [2024] UKSC 8 has recently restated the law on targeting for trade mark infringement purposes. At [27] it confirmed that the question of whether an advertisement or offer for sale is targeted at consumers in the UK is to be considered from the perspective of the average consumer, and at [28] that the question is whether the average consumer would consider the website to be directed at him or her. That will require the judge to carry out a multifactorial assessment of all the circumstances, which at [29] are said to include “the appearance of the website, how it responds to the presence of the consumer, whether it is possible actually to buy goods and have them delivered, and how that is done. They may also include a range of other facts and matters such as (but by no means limited to) the Court of Appeal in Merck [Merck KGaA v Merck Sharp & Dohme Corpn [2017] EWCA Civ 1834, [2018] ETMR 10] at para 170, all of which may assist the court to assess the reaction of the average consumer and so answer the question whether the accused advertisements are targeted at consumers in the UK.” Those facts and matters in Merck include the appearance and the content of the website, which are said to be ‘of particular significance’, including whether it is possible to buy goods or services from it, the nature and size of the trader’s business, the characteristics of the goods or services in issue and the number of visits made to the website by consumers in the UK.

The Supreme Court in Lifestyle Equities confirmed at [30] that it is not necessary to establish that the trader had the subjective intention of targeting consumers in the UK, however, if such a subjective intention is established, it can “ease the path to a finding that the foreign trader’s activities, viewed objectively from the perspective of the average consumer, were and are targeted at consumers in the UK”.